[Ord. No. 1025 §1, 2-13-2012]
The Telecommunications Act of 1996 affirmed the City of New
Haven's authority concerning the placement, construction and modification
of wireless telecommunications facilities. The City of New Haven finds
that wireless telecommunications facilities may pose significant concerns
to the health, safety, public welfare, character and environment of
the City and its inhabitants. The City also recognizes that facilitating
the development of wireless service technology can be an economic
development asset to the City and of significant benefit to the City
and its residents. In order to ensure that the placement, construction
or modification of wireless telecommunications facilities is consistent
with the City's land use policies, the City is adopting a single,
comprehensive, wireless telecommunications facilities application
and permit process. The intent of this local ordinance is to minimize
the impact of wireless telecommunications facilities, establish a
fair and efficient process for review and approval of applications,
ensure an integrated, comprehensive review of environmental impacts
of such facilities, and protect the health, safety and welfare of
the City of New Haven.
[Ord. No. 1025 §2, 2-13-2012]
This Chapter shall be known and cited as the Wireless Telecommunications
Facilities Siting Ordinance for the City of New Haven.
[Ord. No. 1025 §3, 2-13-2012]
A. If any
word, phrase, sentence, part, Section, Subsection, or other portion
of this Chapter or any application thereof to any person or circumstance
is declared void, unconstitutional, or invalid for any reason, then
such word, phrase, sentence, part, Section, Subsection, or other portion,
or the proscribed application thereof, shall be severable, and the
remaining provisions of this Chapter, and all applications thereof,
not having been declared void, unconstitutional, or invalid, shall
remain in full force and effect.
B. Any special
use permit issued under this Chapter shall be comprehensive and not
severable. If part of a permit is deemed or ruled to be invalid or
unenforceable in any material respect, by a competent authority, or
is overturned by a competent authority, the special use permit shall
be void in total, upon determination by the City.
[Ord. No. 1025 §4, 2-13-2012]
For purposes of this Chapter, and where not inconsistent with
the context of a particular Section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this Section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory, and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
CO-LOCATION
The use of an existing tower or structure to support antennae
for the provision of wireless services. A replacement tower that is
constructed on the same site as an existing tower will be considered
a co-location so long as the new tower is no taller than the old tower
and that the old tower is removed in a reasonably short time frame
after the new tower is constructed.
COMMERCIAL IMPRACTICABILITY OR COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercial impracticable" and shall not render an act or the
terms of an agreement "commercially impracticable".
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
COUNCIL
The Board of Aldermen of the City of New Haven.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or structure, the distance measured
from the pre-existing grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightening
protection device.
MODIFICATION OR MODIFY
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or for
any matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
NIER
Non-Ionizing Electromagnetic Radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two (2) or more persons having
a joint common interest, or any other entity.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernable components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
SPECIAL USE PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the City.
STATE
The State of Missouri.
STEALTH OR STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities".
TEMPORARY
Temporary in relation to all aspects and components of this
Chapter, something intended to, or that does not exist for more than
ninety (90) days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Includes a "telecommunications site" and "personal wireless
facility". It means a structure, facility or location designed, or
intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes, without limit, towers of all
types and kinds and structures, including, but not limited to, buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, "911", personal communications services (PCS), commercial
satellite services, microwave services and any commercial wireless
telecommunication service not licensed by the FCC.
[Ord. No. 1025 §5, 2-13-2012]
A. In order
to ensure that the placement, construction, and modification of wireless
telecommunications facilities protects the City's health, safety,
public welfare, environmental features, the nature and character of
the community and neighborhood and other aspects of the quality of
life specifically listed elsewhere in this Chapter, the City hereby
adopts an overall policy with respect to a special use permit for
wireless telecommunications facilities for the express purpose of
achieving the following goals:
1. Requiring
a special use permit for any new, co-location or modification of a
wireless telecommunications facility.
2. Implementing
an application process for person(s) seeking a special use permit
for wireless telecommunications facilities.
3. Establishing
a policy for examining an application for and issuing a special use
permit for wireless telecommunications facilities that is both fair
and consistent.
4. Promoting
and encouraging, wherever possible, the sharing and/or co-location
of wireless telecommunications facilities among service providers.
5. Promoting
and encouraging, wherever possible, the placement, height and quantity
of wireless telecommunications facilities in such a manner, including,
but not limited to, the use of stealth technology, to minimize adverse
aesthetic and visual impacts on the land, property, buildings, and
other facilities adjacent to, surrounding, and in generally the same
area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable
under the facts and circumstances.
6. In granting
a special use permit, the City has found that the facility shall be
the most appropriate site as regards being the least visually intrusive
among those available in the City.
[Ord. No. 1025 §6, 2-13-2012]
A. Except as otherwise provided by this Chapter, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this Chapter without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this Section, no special use permit shall be required for those non-commercial exclusions noted in Section
420.070.
B. All legally
permitted wireless telecommunications facilities, constructed as permitted,
existing on or before the effective date of this Chapter shall be
allowed to continue as they presently exist, provided however, that
any visible modification of an existing wireless telecommunications
facility will require the complete facility and any new installation
to comply with this Chapter.
C. Any repair
and maintenance of a wireless telecommunications facility does not
require an application for a special use permit.
[Ord. No. 1025 §7, 2-13-2012]
A. The following
shall be exempt from this Chapter:
1. The
City's fire, police, street/highway department or other public service
facilities owned and operated by the local government.
2. Any
facilities expressly exempt from the City's siting, building and permitting
authority.
3. Over-the-air
reception devices including the reception antennas for direct broadcast
satellites (DBS), multi-channel multi-point distribution (wireless
cable) providers (MMDS), television broadcast stations (TVBS) and
other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
4. Facilities
exclusively for private, non-commercial radio and television reception
and private citizen's bands, licensed amateur radio and other similar
non-commercial telecommunications.
5. Facilities
exclusively for providing unlicensed spread spectrum technologies
(such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth where the facility
does not require a new tower.
[Ord. No. 1025 §8, 2-13-2012]
A. All applicants
for a special use permit for wireless telecommunications facilities
or any modification of such facility shall comply with the requirements
set forth in this Chapter. The Council is the officially designated
agency or body of the City to whom applications for a special use
permit for wireless telecommunications facilities must be made, and
that is authorized to review, analyze, evaluate and make decisions
with respect to granting or not granting or revoking special use permits
for wireless telecommunications facilities. The City may at its discretion
delegate or designate other official agencies or officials of the
City to accept, review, analyze, evaluate and make recommendations
to the Council with respect to the granting or not granting or revoking
special use permits for wireless telecommunications facilities.
B. The City
may reject applications not meeting the requirements stated herein
or which are otherwise incomplete.
C. No wireless
telecommunications facilities shall be installed, constructed or modified
until the application is reviewed and approved by the City, and the
special use permit has been issued.
D. Any and
all representations made by the applicant to the City on the record
during the application process, whether written or verbal, shall be
deemed a part of the application and may be relied upon in good faith
by the City.
E. An application
for a special use permit for wireless telecommunications facilities
shall be signed on behalf of the applicant by the person preparing
the same and with knowledge of the contents and representations made
therein and attesting to the truth and completeness of the information.
F. The applicant
must provide documentation to verify it has the right to proceed as
proposed on the site. This would require an executed copy of the lease
with the landowner or landlord or a signed letter acknowledging authorization.
If the applicant owns the site, a copy of the ownership record is
required.
G. The applicant
shall include a statement in writing:
1. That
the applicant's proposed wireless telecommunications facilities shall
be maintained in a safe manner, and in compliance with all conditions
of the special use permit, without exception, unless specifically
granted relief by the City in writing, as well as all applicable and
permissible local codes, ordinances, and regulations, including any
and all applicable City, State and Federal laws, rules, and regulations;
2. That
the construction of the wireless telecommunications facilities is
legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in the State
H. Where
a certification is called for in this Chapter, such certification
shall bear the signature and seal of a registered professional licensed
in the State of Missouri.
I. In addition
to all other required information as stated in this Chapter, all applications
for the construction or installation of new wireless telecommunications
facilities or modification of an existing facility shall contain the
information hereinafter set forth:
1. A descriptive
statement of the objective(s) for the new facility or modification
including and expanding on a need such as coverage and/or capacity
requirements;
2. Documentation
that demonstrates and proves the need for the wireless telecommunications
facility to provide service primarily and essentially within the City.
Such documentation shall include propagation studies of the proposed
site and all adjoining planned, proposed, in-service or existing sites
that demonstrate a significant gap in coverage and/or if a capacity
need, including an analysis of current and projected usage;
3. The
name, address and phone number of the person preparing the report;
4. The
name, address, and phone number of the property owner and applicant,
and to include the legal name of the applicant. If the site is a tower
and the owner is different that the applicant, provide name and address
of the tower owner;
5. The
postal address and tax map parcel number of the property;
6. The
zoning district or designation in which the property is situated;
7. Size
of the property stated both in square feet and lot line dimensions,
and a survey showing the location of all lot lines;
8. The
location of nearest residential structure;
9. The
location, size and height of all existing and proposed structures
on the property which is the subject of the application;
10. The
type, locations and dimensions of all proposed and existing landscaping,
and fencing;
11. The
azimuth, size and centerline height location of all proposed and existing
antennae on the supporting structure;
12. The
number, type and model of the antenna(s) proposed with a copy of the
specification sheet;
13. The
make, model, type and manufacturer of the tower and design plan stating
the tower's capacity to accommodate multiple users;
14. A
site plan describing the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above pre-existing grade, materials, color and lighting;
15. The
frequency, modulation and class of service of radio or other transmitting
equipment;
16. The
actual intended transmission power stated as the maximum effective
radiated power (ERP) in watts;
17. Signed
documentation such as the "Checklist to Determine Whether a Facility
is Categorically Excluded" to verify that the wireless telecommunication
facility with the proposed installation will be in full compliance
with the current FCC RF Emissions guidelines (NIER). If not categorically
excluded, a complete RF Emissions study is required to provide verification;
18. A
signed statement that the proposed installation will not cause physical
or RF interference with other telecommunications devices;
19. A
copy of the FCC license applicable for the intended use of the wireless
telecommunications facilities;
20. A
copy of the geotechnical sub-surface soils investigation, evaluation
report and foundation recommendation for a proposed or existing tower
site and if existing tower or water tank site, a copy of the installed
foundation design.
J. The applicant
will provide a written copy of an analysis, completed by a qualified
individual or organization, to determine if the proposed new tower
or existing structure intended to support wireless facilities is in
compliance with Federal Aviation Administration Regulation Part 77
and if it requires lighting. This requirement shall also be for any
existing structure or building where the application increases the
height of the structure or building. If this analysis determines that
an FAA determination is required, then all filings with the FAA, all
responses from the FAA and any related correspondence shall be provided
with the application.
K. Application For New Tower.
1. In the
case of a new tower, the applicant shall be required to submit a written
report demonstrating its meaningful efforts to secure shared use of
existing tower(s) or the use of alternative buildings or other structures
within the City. Copies of written requests and responses for shared
use shall be provided to the City in the application, along with any
letters of rejection stating the reason for rejection.
2. In order
to better inform the public, in the case of a new telecommunication
tower, the applicant shall, prior to the public hearing on the application,
hold a "balloon test". The applicant shall arrange to fly, or raise
upon a temporary mast, a minimum of a three (3) foot in diameter brightly
colored balloon at the maximum height of the proposed new tower. The
dates (including a second (2nd) date, in case of poor visibility on
the initial date) times and location of this balloon test shall be
advertised by the applicant seven (7) and fourteen (14) days in advance
of the first (1st) test date in a newspaper with a general circulation
in the City. The applicant shall inform the City, in writing, of the
dates and times of the test, at least fourteen (14) days in advance.
The balloon shall be flown for at least four (4) consecutive hours
sometime between 7:00 A.M. and 4:00 P.M. on the dates chosen. The
primary date shall be on a weekend, but in case of poor weather on
the initial date, the secondary date may be on a weekday. A report
with pictures from various locations of the balloon shall be provided
with the application.
3. The
applicant shall examine the feasibility of designing the proposed
tower to accommodate future demand for at least four (4) additional
commercial applications, for example, future co-locations. The tower
shall be structurally designed to accommodate at least four (4) additional
antenna arrays equal to those of the applicant, and located as close
to the applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
a. The
foreseeable number of FCC licenses available for the area;
b. The
kind of wireless telecommunications facilities site and structure
proposed;
c. The
number of existing and potential licenses without wireless telecommunications
facilities spaces/sites;
d. Available
space on existing and approved towers.
4. The
owner of a proposed new tower, and his/her successors in interest,
shall negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future, and shall:
a. Respond
within sixty (60) days to a request for information from a potential
shared-use applicant;
b. Negotiate
in good faith concerning future requests for shared use of the new
tower by other telecommunications providers;
c. Allow
shared use of the new tower if another telecommunications provider
agrees in writing to pay reasonable charges. The charges may include,
but are not limited to, a pro rata share of the cost of site selection,
planning, project administration, land costs, site design, construction
and maintenance financing, return-on-equity, less depreciation, and
all of the costs of adapting the towel or equipment to accommodate
a shared user without causing electromagnetic interference.
d. Failure
to abide by the conditions outlined above may be grounds for revocation
of the special use permit.
L. The applicant
shall provide certification with documentation (structural analysis)
including calculations that the telecommunication facility tower and
foundation and attachments, rooftop, support structure, water tank
structure, and any other supporting structure as proposed to be utilized
are designed and will be constructed to meet all local, City, State
and Federal structural requirements for loads, including wind and
ice loads.
M. If proposal
is for a co-location or modification on an existing tower, the applicant
is to provide signed documentation of the tower condition such as
an ANSI report as per Annex E, Tower Maintenance and Inspection Procedures,
ANSI/TIA/EIA-222F or most recent version adopted by the City. The
inspection report must be performed every three (3) years for a guyed
tower and five (5) years for monopoles and self-supporting towers.
N. All proposed
wireless telecommunications facilities shall contain a demonstration
that the facility will be sited so as to minimize visual intrusion
as much as possible, given the facts and circumstances involved and
will thereby have the least adverse visual effect on the environment
and its character and on the residences in the area of the wireless
telecommunications facility.
O. If a
new tower, proposal for a new antenna attachment to an existing structure,
or modification adding to a visual impact, the applicant shall furnish
a visual assessment, which shall include:
1. If a
new tower or increase in the height of an existing structure is proposed,
a computer generated "zone of visibility map" at a minimum of one
(1) mile radius from the proposed structure, with and without foliage,
shall be provided to illustrate locations from which the proposed
installation may be seen.
2. Pictorial
representations of "before and after" (photo simulations) views from
key viewpoints both inside and outside of the City as may be appropriate,
including, but not limited to, State highways and other major roads;
State and local parks; other public lands; historic districts; preserves
and historic sites normally open to the public; and from any other
location where the site is visible to a large number of visitors,
travelers or residents. Guidance will be provided concerning the appropriate
key sites at the pre-application meeting. Provide a map showing the
locations of where the pictures were taken and distance from the proposed
structure.
3. A written
description of the visual impact of the proposed facility including,
and as applicable, the tower base, guy wires, fencing and accessory
buildings from abutting and adjacent properties and streets as relates
to the need or appropriateness of screening.
P. The applicant
shall demonstrate and provide in writing and/or by drawing how it
shall effectively screen from view the base and all related equipment
and structures of the proposed wireless telecommunications facility.
Q. The wireless
telecommunications facility and any and all accessory or associated
facilities shall maximize the use of building materials, colors and
textures designed to blend with the structure to which it may be affixed
and/or to harmonize with the natural surroundings, this shall include
the utilization of stealth or concealment technology as may be required
by the City.
R. All utilities
at a wireless telecommunications facilities site shall be installed
underground whenever possible and in compliance with all laws, ordinances,
rules and regulations of the City, including specifically, but not
limited to, the National Electrical Safety Code and the National Electrical
Code, where appropriate.
S. At a
telecommunications site, an access road, turnaround space and parking
shall be provided to ensure adequate emergency and service access.
Maximum use of existing roads, whether public or private, shall be
made to the extent practicable. Road construction shall at all times
minimize ground disturbance and the cutting of vegetation. Road grades
shall closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion.
T. All wireless
telecommunications facilities shall be constructed, operated, maintained,
repaired, provided for removal of, modified or restored in strict
compliance with all current applicable technical, safety and safety-related
codes adopted by the City, State, or United States, including, but
not limited to, the most recent editions of the ANSI Code, National
Electrical Safety Code and the National Electrical Code, as well as
accepted and responsible workmanlike industry practices and recommended
practices of the National Association of Tower Erectors. The codes
referred to are codes that include, but are not limited to, construction,
building, electrical, fire, safety, health, and land use codes. In
the event of a conflict between or among any of the preceding, the
more stringent shall apply.
U. A holder
of a special use permit granted under this Chapter shall obtain, at
its own expense, all permits and licenses required by applicable law,
rule, regulation or code, and must maintain the same, in full force
and effect, for as long as required by the City or other governmental
entity or agency having jurisdiction over the applicant.
V. There
shall be a pre-application meeting. The purpose of the pre-application
meeting will be to address issues that will help to expedite the review
and permitting process. A pre-application meeting shall also include
a site visit if there has not been a prior site visit for the requested
site.
W. An applicant
shall submit to the City the number of completed applications determined
to be needed at the pre-application meeting. Written notification
of the application shall be provided to the legislative body of all
adjacent municipalities as applicable and/or requested.
X. The holder
of a special use permit shall notify the City of any intended modification
of a wireless telecommunication facility and shall apply to the City
to modify, relocate or rebuild a wireless telecommunications facility.
[Ord. No. 1025 §9, 2-13-2012]
A. Applicants
for wireless telecommunications facilities shall locate, site and
erect said wireless telecommunications facilities in accordance with
the following priorities, one (1) being the highest priority and seven
(7) being the lowest priority.
1. On existing
towers or other structures on City-owned properties.
2. A new
tower on City-owned properties.
3. On existing
towers or other structures on other property in the City.
4. A new
tower on properties in areas zoned for industrial use.
5. A new
tower on properties in areas zoned for commercial use.
6. A new
tower on properties in areas zoned for agricultural use.
7. A new
tower on properties in areas zoned for residential use.
B. If the
proposed site is not proposed for the highest priority listed above,
then a detailed explanation must be provided as to why a site of a
higher priority was not selected. The person seeking such an exception
must satisfactorily demonstrate the reason or reasons why such a permit
should be granted for the proposed site, and the hardship that would
be incurred by the applicant if the permit were not granted for the
proposed site.
C. An applicant
may not bypass sites of higher priority by stating the site proposed
is the only site leased or selected. An application shall address
co-location as an option. If such an option is not proposed, the applicant
must explain to the reasonable satisfaction of the City why co-location
is commercially, or otherwise, impracticable. Agreements between providers
limiting or prohibiting co-location shall not be a valid basis for
any claim of commercial impracticability or hardship.
D. Notwithstanding
the above, the City may approve any site, located within an area in
the above list of priorities; provided that the City finds that the
proposed site is in the best interest of the health, safety and welfare
of the City and its inhabitants and will not have a deleterious effect
on the nature and character of the community and neighborhood.
E. The applicant
shall submit a written report demonstrating the applicant's review
of the above locations in order of priority, demonstrating the technological
reason for the site selection. If appropriate, based on selecting
a site of lower priority, a detailed written explanation as to why
sites of a higher priority were not selected shall be included with
the application.
F. Notwithstanding
that a potential site may be situated in an area of highest priority
or highest available priority, the City may disapprove an application
for any of the following reasons:
1. Conflict
with safety and safety-related codes and requirements;
2. Conflict
with the historic nature or character of a neighborhood or historical
district;
3. The
use or construction of wireless telecommunications facilities which
is contrary to an already stated purpose of a specific zoning or land
use designation;
4. The
placement and location of wireless telecommunications facilities which
would create an unacceptable risk, or the reasonable probability of
such, to residents, the public, employees and agents of the City,
or employees of the service provider or other service providers;
5. Conflicts
with the provisions of this Chapter.
[Ord. No. 1025 §10, 2-13-2012]
A. The City,
as opposed to the construction of a new tower, shall prefer locating
on existing towers or others structures without increasing the height.
The applicant shall submit a comprehensive report inventorying existing
towers and other suitable structures within two (2) miles of the location
of any proposed new tower, unless the applicant can show that some
other distance is more reasonable and demonstrate conclusively why
an existing tower or other suitable structure cannot be used.
B. An applicant
intending to locate on an existing tower or other suitable structure
shall be required to document the intent of the existing owner to
permit its use by the applicant.
C. Such
shared use shall consist only of the minimum antenna array technologically
required to provide service primarily and essentially within the City,
to the extent practicable, unless good cause is shown.
[Ord. No. 1025 §11, 2-13-2012]
A. The applicant
shall submit documentation justifying the total height of any tower,
facility and/or antenna requested and the basis therefore. Documentation
in the form of propagation studies must include all backup data used
to perform at requested height and a minimum of ten (10) feet lower
height to allow verification of this height need. Such documentation
will be analyzed in the context of the justification of the height
needed to provide service primarily and essentially within the City,
to the extent practicable, unless good cause is shown.
B. No tower
constructed after the effective date of this Chapter, including allowing
for all attachments, shall exceed that height which shall permit operation
without required artificial lighting of any kind in accordance with
City, State, and/or any Federal Statute, law, local law, City ordinance,
code, rule or regulation.
[Ord. No. 1025 §12, 2-13-2012]
A. Wireless
telecommunications facilities shall not be artificially lighted or
marked, except as required by law.
B. Towers
shall be galvanized and/or painted with a rust-preventive paint of
an appropriate color to harmonize with the surroundings and shall
be maintained in accordance with the requirements of this Chapter.
C. If lighting
is required, applicant shall provide a plan for sufficient lighting
of as unobtrusive and inoffensive an effect as is permissible under
State and Federal regulations.
[Ord. No. 1025 §13, 2-13-2012]
A. All wireless
telecommunications facilities and antennas shall be located, fenced
or otherwise secured in a manner that prevents unauthorized access.
Specifically:
1. All
antennas, towers and other supporting structures, including guy anchor
points and wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or collided
with; and
2. Transmitters
and telecommunications control points shall be installed in such a
manner that they are readily accessible only to persons authorized
to operate or service them.
[Ord. No. 1025 §14, 2-13-2012]
Wireless telecommunications facilities shall contain a sign
no larger than four (4) square feet in order to provide adequate notification
to persons in the immediate area of the presence of RF radiation or
to control exposure to RF radiation within a given area. A sign of
the same size is also to be installed to contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency phone
number(s). The sign shall be on the equipment shelter or cabinet of
the applicant and be visible from the access point of the site and
must identify the equipment owner of the shelter or cabinet. On tower
sites, an FCC registration site as applicable is also to be present.
The signs shall not be lighted, unless applicable law, rule or regulation
requires lighting. No other signage, including advertising, shall
be permitted.
[Ord. No. 1025 §15, 2-13-2012]
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: A distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus ten percent (10%)
of the height of the tower or structure, or the existing setback requirement
of the underlying zoning district, whichever is greater. The City
may at its discretion amend or waive this requirement on a case-by-case
basis. Any accessory structure shall be located so as to comply with
the applicable minimum setback requirements for the property on which
it is situated.
[Ord. No. 1025 §16, 2-13-2012]
A. The City
may hire any consultant and/or expert necessary to assist the City
in reviewing and evaluating the application, including the construction
and modification of the site, once permitted, and any site inspections.
B. An applicant
shall deposit with the City funds sufficient to reimburse the City
for all reasonable costs of consultant and expert evaluation and consultation
to the City in connection with the review of any application including,
where applicable, the lease negotiation, the pre-approval evaluation,
and the construction and modification of the site, once permitted.
The initial deposit shall be eight thousand five hundred dollars ($8,500.00).
The placement of the eight thousand five hundred dollars ($8,500.00)
with the City shall precede the pre-application meeting. The City
will maintain a separate escrow account for all such funds. The City's
consultants/experts shall invoice the City for its services related
to the application. If at any time during the process this escrow
account has a balance less than two thousand five hundred dollars
($2,500.00), the applicant shall immediately, upon notification by
the City, replenish said escrow account so that it has a balance of
at least five thousand dollars ($5,000.00). Such additional escrow
funds shall be deposited with the City before any further action or
consideration is taken on the application. In the event that the amount
held in escrow by the City is more than the amount of the actual invoicing
at the conclusion of the project, the remaining balance shall, upon
request of the applicant, be promptly refunded to the applicant.
C. Notwithstanding
the above, there shall be a fee cap of seventeen thousand dollars
($17,000.00) as to the total consultant fees to be charged to an applicant
in a case. The foregoing does not prohibit the City from imposing
additional reasonable and cost based fees incurred should an applicant
amend or change its application and the fee cap shall not apply as
to any fees which the City determines to be attributable to the dilatory
or otherwise bad faith actions of applicant in providing a complete
application or in proceeding with a public hearing.
D. The total amount of the funds needed as set forth in Subsection
(B) of this Section may vary with the scope (lease negotiations and/or review) and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
[Ord. No. 1025 §17, 2-13-2012]
A. Prior
to the approval of any application for a special use permit for wireless
telecommunications facilities, a public hearing shall be held by the
City, notice of which shall be published in the newspaper general
circulation in/of the City no less than fifteen (15) calendar days
prior to the scheduled date of the public hearing. In order that the
City may notify nearby landowners, the application shall contain the
names and address of all landowners whose property is located within
one hundred eighty-five (185) feet of any property line of the lot
or parcel on which the new wireless telecommunications facilities
are proposed to be located.
B. There
shall be no public hearing required for an application to co-locate
on an existing tower or other structure or a modification at an existing
site, as long as there is no proposed increase in the height of the
tower or structure, including attachments thereto.
C. The City shall schedule the public hearing referred to in Subsection
(A) of this Section once it finds the application is complete, the City, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.
[Ord. No. 1025 §18, 2-13-2012]
A. The City
will undertake a review of an application pursuant to this Chapter
in a timely fashion, consistent with its responsibilities, and shall
act within a reasonable period of time given the relative complexity
of the application and the circumstances, with due regard for the
public's interest and need to be involved, and the applicant's desire
for a timely resolution.
B. The City
may refer any application or part thereof to any advisory, other committee
or commission for a non-binding recommendation.
C. After
the public hearing and after formally considering the application,
the City may approve, approve with conditions, or deny a special use
permit. Its decision shall be in writing and shall be supported by
substantial evidence contained in a written record. The burden of
proof for the granting of the special use permit shall always be upon
the applicant.
D. If the
City approves the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such approval
in writing within ten (10) calendar days of the City's action, and
the special use permit shall be issued within thirty (30) days after
such approval. Except for necessary building permits, and subsequent
certificate(s) of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the City, such
as site plan or zoning approvals, shall be required by the City for
the wireless telecommunications facilities covered by the special
use permit.
E. If the
City denies the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such denial in
writing within ten (10) calendar days of the City's action.
[Ord. No. 1025 §19, 2-13-2012]
A. The extent
and parameters of a special use permit for wireless telecommunications
facilities shall be as follows:
1. Such
special use permit shall not be assigned, transferred or conveyed,
without the express prior written notification to the City.
2. Such
special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated for a violation
of the conditions and provisions of the special use permit, or for
a material violation of this Chapter after prior written notice to
the holder of the special use permit.
[Ord. No. 1025 §20, 2-13-2012]
At the time that a person submits an application for a special
use permit for a new tower, such person shall pay a non-refundable
application fee of two thousand five hundred dollars ($2,500.00) to
the City. If the application is for a special use permit for co-locating
on an existing tower or other suitable structure, where no increase
in height of the tower or structure is required, the non-refundable
fee shall be one thousand dollars ($1,000.00).
[Ord. No. 1025 §21, 2-13-2012]
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the City a bond,
or other form of security acceptable to the City as to type of security
and the form and manner of execution, in an amount of at least seventy-five
thousand dollars ($75,000.00) for a tower facility and twenty-five
thousand dollars ($25,000.00) for a co-location on an existing tower
or other structure and with such sureties as are deemed sufficient
by the City to assure the faithful performance of the terms and conditions
of this Chapter and conditions of any special use permit issued pursuant
to this Chapter. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special use permit
and/or until any necessary site restoration is completed to restore
the site to a condition comparable to that which existed prior to
the issuance of the original special use permit.
[Ord. No. 1025 §22, 2-13-2012]
In order to verify that the holder of a special use permit for
wireless telecommunications facilities and any and all lessees, renters,
and/or licensees of wireless telecommunications facilities place and
construct such facilities, including towers and antennas, in accordance
with all applicable technical, safety, fire, building, and zoning
codes, laws, ordinances and regulations and other applicable requirements,
the City may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification and maintenance
of such facilities, including, but not limited to, towers, antennas
and buildings or other structures constructed or located on the permitted
site.
[Ord. No. 1025 §23, 2-13-2012]
A. A holder
of a special use permit for wireless telecommunications facilities
shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage, and umbrella insurance
coverage, for the duration of the special use permit in amounts as
set forth below:
1. Commercial
general liability covering personal injuries, death and property damage:
one million dollars ($1,000,000.00) per occurrence/two million dollars
($2,000,000.00) aggregate;
2. Automobile
coverage: one million dollars ($1,000,000.00) per occurrence/two million
dollars ($2,000,000.00) aggregate;
3. Workers'
Compensation and disability: Statutory amounts.
B. For a
wireless telecommunications facility located on City property, the
commercial general liability insurance policy shall specifically include
the City and its officers, councils, employees, committee members,
attorneys, agents and consultants as additional insureds.
C. The insurance
policies shall be issued by an agent or representative of an insurance
company licensed to do business in the State and with a Best's rating
of at least A.
D. The insurance
policies shall contain an endorsement obligating the insurance company
to furnish the City with at least thirty (30) days' prior written
notice in advance of the cancellation of the insurance.
E. Renewal
or replacement policies or certificates shall be delivered to the
City at least fifteen (15) days before the expiration of the insurance
that such policies are to renew or replace.
F. Before
construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than fifteen (15) days after the
granting of the special use permit, the holder of the special use
permit shall deliver to the City a copy of each of the policies or
certificates representing the insurance in the required amounts.
[Ord. No. 1025 §24, 2-13-2012]
A. Any application
for wireless telecommunication facilities that is proposed for City
property, pursuant to this Chapter, shall contain a provision with
respect to indemnification. Such provision shall require the applicant,
to the extent permitted by the law, to at all times defend, indemnify,
protect, save, hold harmless, and exempt the City, and its officers,
councils, employees, committee members, attorneys, agents, and consultants
from any and all penalties, damages, costs, or charges arising out
of any and all claims, suits, demands, causes of action, or award
of damages, whether compensatory or punitive, or expenses arising
therefrom, either at law or in equity, which might arise out of, or
are caused by, the placement, construction, erection, modification,
location, products performance, use, operation, maintenance, repair,
installation, replacement, removal, or restoration of said facility,
excepting, however, any portion of such claims, suits, demands, causes
of action or award of damages as may be attributable to the negligent
or intentional acts or omissions of the City, or its servants or agents.
With respect to the penalties, damages or charges referenced herein,
reasonable attorneys' fees, consultants' fees, and expert witness
fees are included in those costs that are recoverable by the City.
B. Notwithstanding the requirements noted in Subsection
(A) of this Section, an indemnification provision will not be required in those instances where the City itself applies for and secures a special use permit for wireless telecommunications facilities.
[Ord. No. 1025 §25, 2-13-2012]
A. In the
event of a violation of this Chapter or any special use permit issued
pursuant to this Chapter, the City may impose and collect, and the
holder of the special use permit for wireless telecommunications facilities
shall pay to the City, fines or penalties as set forth below.
B. The holder
of a special use permits failure to comply with provisions of this
Chapter shall constitute a violation of this Chapter and shall subject
the applicant to the code enforcement provisions and procedures as
provided in the City of New Haven City Code and the Revised Statutes
of the State of Missouri.
C. Notwithstanding
anything in this Chapter, the holder of the special use permit for
wireless telecommunications facilities may not use the payment of
fines, liquidated damages or other penalties to evade or avoid compliance
with this Chapter or any Section of this Chapter. An attempt to do
so shall subject the holder of the special use permit to termination
and revocation of the special use permit. The City may also seek injunctive
relief to prevent the continued violation of this Chapter, without
limiting other remedies available to the City.
[Ord. No. 1025 §26, 2-13-2012]
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this Chapter or of the special use permit, then the City shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in Section
420.250 and if a violation is not corrected to the satisfaction of the City in a reasonable period of time, the special use permit is subject to revocation.
[Ord. No. 1025 §27, 2-13-2012]
A. Under
the following circumstances, the City may determine that the health,
safety, and welfare interests of the City warrant and require the
removal of wireless telecommunications facilities:
1. Wireless
telecommunications facilities with a permit have been abandoned (i.e.,
not used as wireless telecommunications facilities) for a period exceeding
ninety (90) consecutive days or a total of one hundred eighty (180)
days in any three hundred sixty-five (365) day period, except for
periods caused by force majeure or acts of God, in which case, repair
or removal shall commence within ninety (90) days;
2. Permitted
wireless telecommunications facilities fall into such a state of disrepair
that it creates a health or safety hazard;
3. Wireless
telecommunications facilities have been located, constructed, or modified
without first obtaining, or in a manner not authorized by, the required
special use permit, or any other necessary authorization and the special
permit may be revoked.
B. If the City makes such a determination as noted in Subsection
(A) of this Section, then the City shall notify the holder of the special use permit for the wireless telecommunications facilities within forty-eight (48) hours that said wireless telecommunications facilities are to be removed, the City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C. The holder
of the special use permit, or its successors or assigns, shall dismantle
and remove such wireless telecommunications facilities, and all associated
structures and facilities, from the site and restore the site to as
close to its original condition as is possible, such restoration being
limited only by physical or commercial impracticability, within ninety
(90) days of receipt of written notice from the City. However, if
the owner of the property upon which the wireless telecommunications
facilities are located wishes to retain any access roadway to the
wireless telecommunications facilities, the owner may do so with the
approval of the City.
D. If wireless
telecommunications facilities are not removed or substantial progress
has not been made to remove the wireless telecommunications facilities
within ninety (90) days after the permit holder has received notice,
then the City may order officials or representatives of the City to
remove the wireless telecommunications facilities at the sole expense
of the owner or special use permit holder.
E. If the
City removes, or causes to be removed, wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities
does not claim and remove it from the site to a lawful location within
ten (10) days, then the City may take steps to declare the wireless
telecommunications facilities abandoned, and sell them and their components.
F. Notwithstanding
anything in this Section to the contrary, the City may approve a temporary
use permit/agreement for the wireless telecommunications facilities
for no more than ninety (90) days, during which time a suitable plan
for removal, conversion, or relocation of the affected wireless telecommunications
facilities shall be developed by the holder of the special use permit,
subject to the approval of the City, and an agreement to such plan
shall be executed by the holder of the special use permit and the
City. If such a plan is not developed, approved and executed within
the ninety (90) day time period, then the City may take possession
of and dispose of the affected wireless telecommunications facilities
in the manner provided in this Section.
[Ord. No. 1025 §28, 2-13-2012]
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this Chapter may request such at the pre-application
meeting, provided that the relief or exemption is contained in the
submitted application for either a special use permit, or in the case
of an existing or previously granted special use permit, a request
for modification of its tower and/or facilities. Such relief may be
temporary or permanent, partial or complete. However, the burden of
proving the need for the requested relief, waiver or exemption is
solely on the applicant to prove. The applicant shall bear all costs
of the City in considering the request and the relief, waiver or exemption.
No such relief or exemption shall be approved unless the applicant
demonstrates by clear and convincing evidence that, if granted, the
relief, waiver or exemption will have no significant affect on the
health, safety and welfare of the City, its residents and other service
providers.
[Ord. No. 1025 §29, 2-13-2012]
A. The City
may at any time conduct a review and examination of this entire Chapter.
B. If, after
such a periodic review and examination of this Chapter, the City determines
that one (1) or more provisions of this Chapter should be amended,
repealed, revised, clarified, or deleted, then the City may take whatever
measures are necessary in accordance with applicable law in order
to accomplish the same. It is noted that where warranted, and in the
best interests of the City, the City may repeal this entire Chapter
at any time.
C. Notwithstanding the provisions of Subsections
(A) and
(B) of this Section, the City may at any time and in any manner (to the extent permitted by Federal, State, or local law) amend, add, repeal, and/or delete one (1) or more provisions of this Chapter.
[Ord. No. 1025 §30, 2-13-2012]
A. To the
extent that the holder of a special use permit for wireless telecommunications
facilities has not received relief, or is otherwise exempt, from appropriate
State and/or Federal agency rules or regulations, then the holder
of such a special use permit shall adhere to, and comply with, all
applicable rules, regulations, standards, and provisions of any State
or Federal agency, including, but not limited to, the FAA and the
FCC. Specifically included in this requirement are any rules and regulations
regarding height, lighting, security, electrical and RF emission standards.
B. To the
extent that applicable rules, regulations, standards, and provisions
of any State or Federal agency, including, but not limited to, the
FAA and the FCC, and specifically including any rules and regulations
regarding height, lighting, and security are changed and/or are modified
during the duration of a special use permit for wireless telecommunications
facilities, then the holder of such a special use permit shall conform
the permitted wireless telecommunications facilities to the applicable
changed and/or modified rule, regulation, standard, or provision within
a maximum of twenty-four (24) months of the effective date of the
applicable changed and/or modified rule, regulation, standard, or
provision, or sooner as may be required by the issuing entity.